January 19, 2021

Volume XI, Number 19

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January 19, 2021

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January 18, 2021

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West Virginia Legislature Amends Comparative Fault and Medical Professional Liability Acts

The West Virginia State Legislature recently passed amendments to WV Code § 55-7-13d (the "Comparative Fault Act") and § 55-7B-5 of the Medical Professional Liability Act. This alert serves to highlight the changes to these two code provisions.

First, the following amendments were enacted to the Comparative Fault Act, which will affect causes of action arising or accruing after May 24, 2016:

  • Explicitly removing dollar-for-dollar setoffs representing prejudgment settlement amounts when jurors assess non-party liability at trial. This change removes the previous version's apparent grant of both a proportionate verdict reduction based on a percentage of a non-party’s liability and an implicit dollar-for-dollar setoff based on the total amount of settlement value between plaintiffs and settling parties. Conversely, now the total verdict may only be reduced by a jury's assessment of a non-party's proportionate fault at trial.

  • Clarifying the intent of the previous version to provide for a complete bar against all recovery for all damages resulting from all injuries occurring during the commission or flight from a felony or violent misdemeanor and explicitly including wrongful death actions under the Act.

  • Providing for a mandatory stay of a civil action, upon motion by a defendant, during the pendency of any criminal action that forms the basis of the support of the complete bar to recovery as noted above.

  • Correcting the non-party liability notification requirement from the previous "108" days to the more logical "180" days.

Second, the following amendments were enacted to the Medical Professional Liability Act:

  • Providing for a complete defense for actions against health care providers (including pharmacies) related to the prescription or dispense of controlled substances when a plaintiff’s damages arise as a proximate result of his or her violation of the Uniform Controlled Substances Act, similar state and federal law, or the commission of felonies and violent misdemeanors.

  • Limiting such defense if a plaintiff proves that health care providers (or pharmacies) prescribed or dispensed controlled substances, which were the proximate cause of a plaintiff's injuries, in violation of the Uniform Controlled Substances Act and/or similar state and federal law.  However, it remains unclear if the amendment requires a plaintiff to make a prima facie showing of such violations, in order to avoid motions to dismiss or motions for summary judgment.

Click here to read the full text of Senate Bill 7, which was passed on February 24, 2016.

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© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume VI, Number 83
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About this Author

Jace Goins, Professional Liability Attorney, Steptoe Johnson Law Firm
Member

Jace Goins practice is focused primarily on the area of professional liability litigation, and more specifically on the defense of long-term care facilities, physicians, and hospitals. He also represents defendants in the areas of medical device product liability, toxic and mass torts, legal malpractice, and workplace injury. He has also developed expertise in the area of federal preemption of claims against medical device manufacturers.  He has tried numerous cases to verdict in both state and federal court, and is licensed to practice in West Virginia and Kentucky.

(304) 353-8143
Anders W. Lindberg, Steptoe Johnson, Professional Liability Defense Lawyer, Federal Court Trial Attorney
Member

Anders Lindberg is the Practice Group Leader for the firm's Professional Liability Practice Group.  Mr. Lindberg focuses his practice in the areas of professional liability defense, employment litigation, and general litigation. 

(304) 526-8096
Monté L. Williams, Steptoe Johnson, General Litigation Lawyer, "
Member

Monté Williams often tells his clients, "I'm here to try to eliminate your worry."  Monté puts his skills as a litigator to work to protect his clients, whether he's defending them at trial, managing litigation, negotiating settlements, conducting investigations, or partnering with them to find ways to avoid future problems.  His background as a former West Virginia State Trooper gives clients trust that issues will be thoroughly investigated and evaluated quickly and strategically.  Monté collaborates with his clients long before litigation is a reality to protect them...

(304) 598-8142
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